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New Mexico AG: state law does not necessarily allow same-sex marriage

New Mexico Attorney General Gary King [official profile] said Thursday that New Mexico law does not necessarily allow same-sex marriages [press release]. The statement does not directly comment on the matter, as it was made in response to a pending lawsuit in New Mexico brought by a same-sex couple. In a policy memo [text] released by King's office as part of extensive research, King stated his office would not give an official ruling and would instead defer to the court system. King analyzes New Mexico and national laws surrounding the challenge. The memo states:

Although current state statutes limit marriage to couples of the opposite sex, we believe they are vulnerable to constitutional challenge. ... We believe it likely that a New Mexico court would apply intermediate scrutiny to this state's laws limiting marriage to opposite-sex couples. If so, based on the cases in other states that have applied intermediate scrutiny to similar laws in their states, there appears to be little possibility that New Mexico's laws precluding same-sex marriage would withstand an equal protection challenge.
There are three lawsuits [AP report] challenging New Mexico laws. One was filed Thursday and two others were filed in March to try to compel court clerks to issue marriage licenses to same-sex couples. It is this practice that King refused to compel, given the pending nature of these claims.

The issue of same-sex marriage [JURIST backgrounder] remains controversial in the US. In May the Minnesota House approved a same-sex marriage bill which was later signed [JURIST reports] by the governor. Earlier that week Delaware's governor signed [JURIST report] a same-sex marriage bill into law. That same month Rhode Island's governor also signed [JURIST report] a same-sex marriage bill into law. In March the US Supreme Court heard oral arguments in two same-sex marriage cases. The first case, Hollingsworth v. Perry [JURIST report], examines the validity of Proposition 8 [JURIST news archive], a California referendum that revoked same-sex marriage rights. In the second case, United States v. Windsor [JURIST report], the court examines the constitutionality of Section 3 of the Defense of Marriage Act. The court granted certiorari [JURIST report] in the two cases in December. Both cases could have an important impact on the ongoing same-sex marriage controversy in the US. A ruling is expected later this month.

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